1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RANDI QUINTELL, 7 Case No. 22-cv-09158-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE RE 9 DISMISSAL UNDER 28 U.S.C. § 1915 DANIEL TOMKO, 10 Defendant. 11
12 13 I. INTRODUCTION 14 Plaintiff Randi Quintell, pro se, applied to proceed in forma pauperis and the Court granted 15 her application. See Docket No. 4. The Court now reviews the sufficiency of Plaintiff’s 16 complaint to determine whether it satisfies 28 U.S.C. § 1915(e)(2)(B). Because the complaint 17 does not allege facts establishing federal jurisdiction or plausibly state a claim, Plaintiff is 18 ORDERED TO SHOW CAUSE why the complaint should not be dismissed. Plaintiff may file 19 either an amended complaint or a response to this order addressing the basis for federal 20 jurisdiction and why her complaint is sufficient, no later than February 8, 2022. The Case 21 Management Conference set for March 31, 2023 is vacated. 22 II. THE COMPLAINT1 23 Plaintiff has filed a form complaint against Defendant Daniel Temko, listing two addresses 24 for Defendant – one in Oakland, California and another in San Leandro, California. She also 25 describes Defendant as a citizen of “California/Pennsylvania” and “All foreign/galactic.” She has 26 1 Because the factual allegations of a plaintiff’s complaint are generally taken as true in the context 27 of determining whether the complaint states a claim, this section summarizes Plaintiff’s 1 checked the box for “federal question” jurisdiction. In the Statement of Claim section, she has 2 written: “● See Attachments ● All Entiritys [sic] ● Before Any others pass away without giving 3 me my propertys [sic] and assets as 9 others have left.” The attachments are a series of 4 documents, including what appear to be statements and communications by Plaintiff, relating to 5 claims that Plaintiff’s property and belongings have been stolen. Although there is no clear 6 statement of facts, the attachments suggest that Plaintiff’s claims relate to a dispute involving the 7 inheritance of a home in San Leandro, California and Plaintiff’s alleged ownership of the home 8 and the personal property in it. 9 III. ANALYSIS 10 A. Legal Standards Under 28 U.S.C. § 1915 and Rule 12(b)(6) 11 Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave 12 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 13 (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 14 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see 15 Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). 16 To state a claim for relief, a plaintiff must make “a short and plain statement of the claim 17 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Further, a claim may be 18 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); 19 see also Diaz v. Int’l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 20 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of 21 material fact in the complaint as true and construe[s] them in the light most favorable to the non- 22 moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 23 (9th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as true is 24 inapplicable to legal conclusions [and] mere conclusory statements,” Ashcroft v. Iqbal, 556 U.S. 25 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “do not 26 necessarily assume the truth of legal conclusions merely because they are cast in the form of 27 factual allegations.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (internal 1 allege facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 678 (citing 2 Twombly, 550 U.S. at 570). 3 Where the complaint has been filed by a pro se plaintiff, courts must “construe the 4 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 5 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 6 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 7 amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds 8 by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, 9 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 10 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 11 litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 12 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant 13 will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th 14 Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). 15 B. Discussion 16 As a preliminary matter, the Court must address whether there is federal jurisdiction over 17 Plaintiff’s complaint. See B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). 18 Federal courts have limited subject matter jurisdiction and may only hear cases falling within their 19 jurisdiction. The two most common forms of federal subject matter jurisdiction are federal 20 question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. 21 Diversity jurisdiction exists where all plaintiffs are citizens of different states from all defendants 22 and at least $75,000 is in controversy. Here, Plaintiff alleges that there is federal question 23 jurisdiction, but she has not cited any violation of a federal statute or of the United States 24 Constitution in her Complaint. It also does not appear that Plaintiff can establish diversity 25 jurisdiction as both Plaintiff and Defendant appear to reside in California.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RANDI QUINTELL, 7 Case No. 22-cv-09158-JCS Plaintiff, 8 v. ORDER TO SHOW CAUSE RE 9 DISMISSAL UNDER 28 U.S.C. § 1915 DANIEL TOMKO, 10 Defendant. 11
12 13 I. INTRODUCTION 14 Plaintiff Randi Quintell, pro se, applied to proceed in forma pauperis and the Court granted 15 her application. See Docket No. 4. The Court now reviews the sufficiency of Plaintiff’s 16 complaint to determine whether it satisfies 28 U.S.C. § 1915(e)(2)(B). Because the complaint 17 does not allege facts establishing federal jurisdiction or plausibly state a claim, Plaintiff is 18 ORDERED TO SHOW CAUSE why the complaint should not be dismissed. Plaintiff may file 19 either an amended complaint or a response to this order addressing the basis for federal 20 jurisdiction and why her complaint is sufficient, no later than February 8, 2022. The Case 21 Management Conference set for March 31, 2023 is vacated. 22 II. THE COMPLAINT1 23 Plaintiff has filed a form complaint against Defendant Daniel Temko, listing two addresses 24 for Defendant – one in Oakland, California and another in San Leandro, California. She also 25 describes Defendant as a citizen of “California/Pennsylvania” and “All foreign/galactic.” She has 26 1 Because the factual allegations of a plaintiff’s complaint are generally taken as true in the context 27 of determining whether the complaint states a claim, this section summarizes Plaintiff’s 1 checked the box for “federal question” jurisdiction. In the Statement of Claim section, she has 2 written: “● See Attachments ● All Entiritys [sic] ● Before Any others pass away without giving 3 me my propertys [sic] and assets as 9 others have left.” The attachments are a series of 4 documents, including what appear to be statements and communications by Plaintiff, relating to 5 claims that Plaintiff’s property and belongings have been stolen. Although there is no clear 6 statement of facts, the attachments suggest that Plaintiff’s claims relate to a dispute involving the 7 inheritance of a home in San Leandro, California and Plaintiff’s alleged ownership of the home 8 and the personal property in it. 9 III. ANALYSIS 10 A. Legal Standards Under 28 U.S.C. § 1915 and Rule 12(b)(6) 11 Where a plaintiff is found to be indigent under 28 U.S.C. § 1915(a)(1) and is granted leave 12 to proceed in forma pauperis, courts must engage in screening and dismiss any claims which: 13 (1) are frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek 14 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see 15 Marks v. Solcum, 98 F.3d 494, 495 (9th Cir. 1996). 16 To state a claim for relief, a plaintiff must make “a short and plain statement of the claim 17 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Further, a claim may be 18 dismissed for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6); 19 see also Diaz v. Int’l Longshore and Warehouse Union, Local 13, 474 F.3d 1202, 1205 (9th Cir. 20 2007). In determining whether a plaintiff fails to state a claim, the court takes “all allegations of 21 material fact in the complaint as true and construe[s] them in the light most favorable to the non- 22 moving party.” Cedars-Sinai Med. Ctr. v. Nat’l League of Postmasters of U.S., 497 F.3d 972, 975 23 (9th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as true is 24 inapplicable to legal conclusions [and] mere conclusory statements,” Ashcroft v. Iqbal, 556 U.S. 25 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)), and courts “do not 26 necessarily assume the truth of legal conclusions merely because they are cast in the form of 27 factual allegations.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (internal 1 allege facts sufficient to “state a claim to relief that is plausible on its face.” Id. at 678 (citing 2 Twombly, 550 U.S. at 570). 3 Where the complaint has been filed by a pro se plaintiff, courts must “construe the 4 pleadings liberally . . . to afford the petitioner the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 5 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint 6 unless it is absolutely clear that the deficiencies in the complaint could not be cured by 7 amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds 8 by statute, as recognized in Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000) (en banc). Further, 9 when it dismisses the complaint of a pro se litigant with leave to amend, “the district court must 10 provide the litigant with notice of the deficiencies in his complaint in order to ensure that the 11 litigant uses the opportunity to amend effectively.” Id. (quoting Ferdik v. Bonzelet, 963 F.2d 12 1258, 1261 (9th Cir. 1992)). “Without the benefit of a statement of deficiencies, the pro se litigant 13 will likely repeat previous errors.” Karim-Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 (9th 14 Cir. 1988) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). 15 B. Discussion 16 As a preliminary matter, the Court must address whether there is federal jurisdiction over 17 Plaintiff’s complaint. See B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). 18 Federal courts have limited subject matter jurisdiction and may only hear cases falling within their 19 jurisdiction. The two most common forms of federal subject matter jurisdiction are federal 20 question jurisdiction under 28 U.S.C. § 1331 and diversity jurisdiction under 28 U.S.C. § 1332. 21 Diversity jurisdiction exists where all plaintiffs are citizens of different states from all defendants 22 and at least $75,000 is in controversy. Here, Plaintiff alleges that there is federal question 23 jurisdiction, but she has not cited any violation of a federal statute or of the United States 24 Constitution in her Complaint. It also does not appear that Plaintiff can establish diversity 25 jurisdiction as both Plaintiff and Defendant appear to reside in California. 26 Further, Plaintiff has not provided “a short and plain statement of the claim showing that 27 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). As a result, the Court cannot determine 1 IV. CONCLUSION 2 For the reasons discussed above, Plaintiff is ORDERED TO SHOW CAUSE why this case 3 should not be dismissed on the basis that there is no federal jurisdiction and/or that she has failed 4 || tostateaclaim. Plaintiff may respond by filing either an amended complaint that addresses the 5 deficiencies discussed above or a response that addresses why her current complaint is sufficient. 6 || Plaintiffs response shall be filed by February 8, 2023. If Plaintiff does not file a response by 7 that date, the case will be reassigned to a United States district judge with a recommendation that 8 it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B). 9 Any amended complaint must include the caption and civil case number used in this order 10 || (22-cv-9158) and the words FIRST AMENDED COMPLAINT on the first page. Because an 11 amended complaint completely replaces the previous complaint, any amended complaint may not 12 || incorporate claims or allegations of Plaintiff’s original complaint by reference, but instead must 5 13 include all of the facts and claims Plaintiff wishes to present and all of the defendants he wishes to 14 sue. 15 Plaintiff, who is not represented by counsel, is encouraged to consult with the Federal Pro a 16 || Bono Project’s Legal Help Center in either of the Oakland or San Francisco federal courthouses 3 17 for assistance. The San Francisco Legal Help Center office is located in Room 2796 on the 15th 18 floor at 450 Golden Gate Avenue, San Francisco, CA 94102. The Oakland office is located in 19 Room 470 S on the 4th floor at 1301 Clay Street, Oakland, CA 94612. Appointments can be made 20 || by calling (415) 782-8982 or emailing federalprobonoproject@ sfbar.org. Lawyers at the Legal 21 Help Center can provide basic assistance to parties representing themselves but cannot provide 22 || legal representation. 23 IT IS SO ORDERED. 24 Dated: January 4, 2023 25 6 Z CZ J PH C. SPERO 26 ief Magistrate Judge 27 28